In May President Trump issued an executive order directing Attorney General Sessions to address several issues concerning religious liberty, including:
• Issue explicit guidance from the Attorney General to the Treasury Department to prohibit the revocation of tax exempt status to an organization based on its religious beliefs;
• Encourage the Department of Health & Human Services to issue the draft interim final rule providing relief to the contraceptive mandate;
• Ensure a Religious Freedom Restoration Act (RFRA) analysis is articulated in the process of all future regulations;
• Reaffirm the First Amendment to the U.S. Constitution and the Religious Freedom Restoration Act as the standard by which conflicts between the federal government and the religious beliefs or actions of citizens are adjudicated; and other ways the government can assure the government protects instead of infringes upon the religious freedom of our fellow Americans.
The Department of Justice complied with that order on Friday with a 25-page memo outlining “20 Key Principles” on how administrative agencies and executive branch departments must protect religious liberty. The 20 principles are:
- The freedom of religion is an important, fundamental right, expressly protected by federal law.
- The free exercise of religion includes the right to act or not to act in accordance with one’s religious beliefs.
- The freedom of religion extends to persons and organizations.
- Americans do not give up their freedom of religion by participating in society or the economy, or interacting with government.
- Government may not restrict or compel actions because of the belief they display.
- Government may not exclude religious individuals or entities based on their religion.
- Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.
- Government may not officially favor or disfavor particular religious groups.
- Government may not interfere with the autonomy of a religious organization.
- The Religious Freedom Restoration Act of 1993 (“RFRA”) prohibits the federal government from substantially burdening any aspect of religious observance or practice, except in rare cases where the government has a compelling reason and there is not a less-restrictive option available.
- RFRA’s protection extends not just to individuals, but also to organizations, associations, and at least some for-profit corporations.
- RFRA does not permit the federal government to second-guess the reasonableness of a sincerely held religious belief.
- A governmental action substantially burdens an exercise of religion under RFRA if it bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.
- Under RFRA, any government action that would substantially burden religious freedom is held to an exceptionally demanding standard.
- RFRA applies even where a religious adherent seeks an exemption from a requirement to confer benefits on third parties.
- Title VII of the Civil Rights Act prohibits covered employers from discriminating against individuals on the basis of their religion.
- Title VII prohibits discrimination on the basis of religious observance or practice as well as belief, unless the employer cannot reasonably accommodate such observance or practice without undue hardship.
- The Clinton Guidelines on Religious Exercise and Religious Expression in the Federal Workplace provide useful examples for private employers of reasonable accommodations for religious observance and practice in the workplace.
- Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.
- Generally, the federal government may not condition federal grants or contracts on the religious organization altering its religious character, beliefs, or activities.
The memo has already received condemnation from anti-religious liberty forces even though, as Andrew T. Walker says, “The principles represent nothing more than a historical reaffirmation of government’s posture toward religious liberty.”
Walker, the Director of Policy Studies at the Ethics and Religious Liberty Commission, adds that, “anyone with a passing familiarity of American civics should see these principles for what they are — a restatement of basic principle. Anyone who sees controversy in these principles is out of step with the Constitution.”